“It is submitted that there cannot be an untrammelled right under Article 21 and cannot override other constitutional principles,” the government said, adding that Parliament has designed and framed marriage laws, which are governed by personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences. It said that even if such right is claimed under Article 21 of the Constitution, such right can be curtailed by competent legislature on permissible constitutional grounds including legitimate state interest. The Centre said, “It is submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.” The prayer made by the petitioner before this court, is, therefore, wholly unsustainable, untenable and misplaced,” it said. “It must be kept in mind that granting recognition and conferring rights recognising human relation which has its consequences in law, and privileges, is in essence a legislative function and can never be the subject matter of judicial adjudication. The government said that at the outset the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex and this definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation. The Centre said the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. Therefore, any formal recognition of such human relationship cannot be regarded as just a privacy issue between two adults,” it said. “Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. It said western decisions sans any basis in Indian constitutional law jurisprudence cannot be imported in this context, while asserting that granting recognition to human relations is a legislative function and can never be a subject of judicial adjudication.
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